Malta / Court of Criminal Appeal (Inferior) / 99/2025/1
-
Malta / Court of Criminal Appeal (Inferior) / 99/2025/1
Key facts of the case:
The judicial authorities in Poland issued a European Arrest Warrant (EAW) against Timothy Alan Mackay who was resident in Malta. The arrest warrant was issued for the purpose of prosecution of a number of offences allegedly committed by Mr. Mackay. The Court of Magistrates as a Court of Criminal Inquiry had not found any exceptional circumstances to merit rejecting the arrest warrant and ordered that Mackay be held in custody to await his return to Poland in Police (Inspector Roderick Spiteri) Vs Timothy Alan Mackay (99/2025) decided on 28 February 2025.
Mr. Mackay appealed the decision of the Court of Magistrates on a number of grounds including that his return to Poland would subject him to inhuman and degrading treatment contrary to Article 4 of the Charter.
Key legal question raised by the court:
The Court analysed whether it had the competence to decide on Charter and fundamental rights matters or whether it had an obligation to refer any questions to the Constitutional Courts to decide. Furthermore, it examined whether the principles of mutual trust and recognition which are at the heart of the EAW are absolute or whether a refusal to surrender the appellant could be justified under the Charter. Lastly, it carried out an assessment of Article 4 in relation to the situation in Poland and whether any such surrender would indeed result in inhuman and degrading treatment.
Outcome of the case:
The Court based itself on the jurisprudence of the constitutional court which holds that the courts of criminal jurisdiction hearing cases in proceedings regarding the execution of a EAW, have a duty to determine whether from the evidence it results that there is a real risk that the return of the person leads to inhuman and degrading treatment. The Constitutional Court held that if the criminal courts do not make this assessment it would amount to a lack of implementation of European Union law, including the Charter.
Having established jurisdiction, the Court then held that although the EAW is based on mutual trust and cross-border cooperation and efficiency it could have a draconian effect on the fundamental rights of the person to be extradited. It therefore proceeded to examine whether the appellant’s fundamental rights under Article 4 of the Charter would be breached if he was returned to Poland. The Court used key case-law from the Court of Justice of the European Union which lay down guidelines that need to be used by courts in assessing the defence of a violation of Article 4. It also examined judgments of the European Court of Fundamental Rights and reports from the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in assessing whether the appellant faced a real risk of ill-treatment by examining any foreseeable consequence of sending the appellant to Poland.
Finally, the Court found that although there were outstanding recommendations to improve the prison conditions situation in Poland, such conditions did not amount to ill-treatment, and the appellant was not facing a real risk of being subjected to inhuman and degrading treatment. The Court made ample reference to the report published by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on its ad hoc visit to Poland, which found that although the prison cells are smaller than recommended prison conditions are generally acceptable with no allegations of ill treatment. Furthermore, whilst the Court noted that the report recommended improving medical care and the appellant suffered from a heart condition, a doctor’s report presented at first instance stated that the condition can be managed in a prison environment. The Court also made reference to the US Department of State county reports on human rights in Poland which concluded that the physical condition in prisons are not abusive. The appeal was rejected on this ground, in addition to all other grounds put forward.
-
Paragraphs referring to EU Charter
The scope behind the introduction of the procedure relating to the European arrest warrant has been to allow member states to pursue prosecutions and custodial sentences across borders and doing away with the often cumbersome and time- consuming procedures adopted in the extradition procedures utilized in member states thus effectively combatting cross-border crimes and threats such as terrorism. The EAW however, could have a draconian impact on the fundamental rights of the person sought to be extradited and thus both the CJEU and the ECtHR have held that in the execution of the EAW, although based on the mutual trust and recognition between member states, should also seek to safeguard the requested person from a violation of his human rights as laid out in the Charter of Fundamental Human Rights of the European Union and the European Convention on Human rights to which the Member states are signatories. In fact, several judgments by the CJEU and the ECtHR have addressed the issues regarding alleged human rights violations in the execution of the EAW, and have established that in such exceptional circumstances where in the specific case relating to the requested person there is a clear risk of a violation, this would pose a limitation on the principles of mutual recognition and trust between member states.
…
The oft-cited Aranyosi and Caldararu judgment emphasises the guarantees which EU law indiscriminately and persistently grants where there is a risk of a violation of the fundamental rights of the requested person as laid out in the Charter. The judgment goes on to outline the guidelines which a court is to follow in assessing the defence of a violation of article 4 of the Charter raised by a requested person in EAW proceedings
…
Ergo, although the prison conditions in some Member States may fall below minimum standards and thus endanger the right of the requested person not to be subjected to ill-treatment as guaranteed under the ECHR and CFREU, such systemic failures do not necessarily amount to a violation, but specific evidence on the individual risk can evoke the obligation to refuse to execute the warrant. Of significance are the Court’s directions in this case:
The executing judicial authority should seek additional information from the issuing authority and until they are satisfied that there is no such risk to the individual the national judicial authority should postpone executing the warrant. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end in the light of Article 6 Charter. In accordance, Member States are in principle obliged to act on an EAW due to the principle of mutual trust and mutual recognition. However, in exceptional circumstances these principles can be limited.”
These rules and guidelines were re-affirmed in judgments following the Caldararu case such as the cases of Dumitru-Tudor Dorobantu and Generalstaatsanwaltschaft which assert that in order to ensure the observance of Article 4 of the Charter in the procedure of a European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is then bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of that person to the issuing Member State, he/she will run a real risk of being subjected to inhuman or degrading treatment in that Member State, within the meaning of Article 4 of the Charter.
…
Thus, although there are recommendations from European and international institutions which still have to be implemented in Poland to address certain deficiencies, however, the conditions in the prisons do not pose a real risk to appellant of a breach of article 4 of the Charter and article 3 of the Convention upon surrender. The Court cannot, therefore, entertain this grievance without having factual and concrete evidence in the acts to support the allegation, the evidence brought forward consisting only in the arguments put forward by appellant both in her written pleadings and oral submissions, being third party findings and judicial pronunciations on the matter. In such cases of alleged breach, it is necessary for the requested person to demonstrate that there are strong grounds for believing that, if returned, he will face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. Evidence of such a real risk is not found in the acts. On the contrary although it is true that there are misgivings in certain areas with regards to the said prison conditions, however the reports are all in agreement that over-all there is no risk of ill-treatment and abuse even with regards to foreign nationals. The findings in these reports coupled with the assurances given by the Polish authorities cannot warrant a refusal by this Court to execute the EAW, since there is insufficient evidence to demonstrate, as already pointed out, that in this specific case appellant will face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. Consequently, this first grievance is being rejected.
-
Paragraphs referring to EU Charter (original language)